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PETITION 






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TO THE 



PRESIDENT OF THE UNITED STATES. 



M. D. Carr & Co. Printers, 532 Clay Street, San Francisco. 



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PETITION" 



To THE PBESIDENT OP THE UNITED STATES — 

Sir: By a resolution of the Board of Trustees of the New 
Idria Mining Company, I am directed to address to your 
Excellency the following communication: 

From a correspondence between your Excellency and 
Secretary Cox, lately given to the public, the Board is 
satisfied that you have been grossly imposed on by inter- 
ested and designing parties in relation to the facts and 
circumstances under which the "New Idria Mining Com- 
pany " is seeking a patent at the hands of the Executive of 
the United States. They hope by a plain and simple state- 
ment, for the correctness of which they appeal to the 
archives of the office of the Secretary of the Interior, to 
dispel any illusion under which you may labor. 

For more than twenty years the public lands of the 
United States have been open to settlement, occupation and 
use by its citizens. Under the operation of this system, 
gold, silver, copper and cinnabar have been extracted in 
such quantities as to make their products one of the leading 
interests of the country. Although for a long time no 
express license was granted by the Government to extract 
the precious metals from the public lands, the rights ac- 
quired under the mining laws of the different districts were 
recognized in several enactments, and were, invariably, 
respected by the Congress of the United States. Indeed, it 
was under the permissive and fostering action of the Gov- 
ernment that this branch of industry expanded and grew 
nto its present vast proportions. 



But on the 26th day of July, 1866, Congress passed an 
Act that converted this implied license into an actual and 
substantial right. The chief provisions of this Act run as 
follows : 

Section 1. Be it enacted by the Senate and House of Rep- 
resentatives of the United States of America in Congress assem- 
bled, That the mineral lands of the public domain, both 
surveyed and unsurveyed, are hereby declared to be free 
and open to exploration and occupation by all citizens of 
the United States and those who have declared their inten- 
tion to become citizens, subject to such regulations as may 
be prescribed by law, and subject also to the local customs or 
rules of miners in the several mining districts, so far as the 
same may not be in conflict with the laws of the United 
States. 

Sec. 2. And be it further enacted, That whenever any 
person, or association of persons, claim a vein or lode of 
quartz, or other rock in place, bearing gold, silver, cinnabar 
or copper, having previously occupied and improved the 
same according to the local custom or rules of miners in the 
district where the same is situated, and having expended in 
actual labor and improvements thereon an amount of not 
less than one thousand dollars, and in regard to whose pos- 
session there is no controversy or opposing claim, it shall, 
and may be, lawful for said claimant, or association of 
claimants, to file in the local land office a diagram of the 
same, so extended laterally or otherwise, as to conform to 
the local laws, customs and rules of miners, and to enter 
such tract, and receive a patent therefor, granting such 
mine, together with the right to follow such vein or lode, 
with its dips, angles and variations, to any depth, although 
it may enter the land adjoining, which land adjoining shall 
be sold subject to this condition. 

Sec. 3. And be it further enacted, That upon the filing of 
the diagram as provided in the second section of this Act, 
and posting the same in a conspicuous place on the claim, 
together with a notice of intention to apply for a patent, the 

LC Control Number 




tmp96 025299 



Eegister of the Land Office shall publish a notice of the 
same in a newspaper published nearest to the location of 
said claim, and shall also post such notice in his office for 
the period of ninety days; and after the expiration of said 
period, if no adverse claim shall have been filed, it shall be 
the duty of the Surveyor General, upon application of the 
party, to survey the premises and make a plat thereof, in- 
dorsed with his approval, designating the number and de- 
scription of the location, the value of the labor and im- 
provements, and the character of the vein exposed ; and upon 
the payment to the proper officer of five dollars per acre, 
together with the cost of such survey, plat, and notice, and 
giving satisfactory evidence that said diagram and notice 
have been posted on the claim during said period of ninety 
days, the Eegister of the Land Office shall transmit to the 
General Land Office said plat, survey, and description, and 
a patent shall issue for the same thereupon. But said plat, 
survey or description shall in no case cover more than one 
vein or lode, and no patent shall issue for more than one 
vein or lode, which shall be expressed in the patent issued. 

Here, your Excellency will perceive that the Legislative 
Department, to which, by the Constitution, the disposition 
of the public lands is entrusted, has made a disposition of 
the mineral lands of the United States, whereby they be- 
come the private property of its citizens, upon certain spe- 
cified terms and conditions. These terms and conditions 
being complied with, upon the Executive is devolved the 
mere ministerial duty of signing and delivering the Patent. 

Now, the lode claimed by the New Idria Mining Company 
was discovered in 1852, and was located according to the 
mining laws of the district in the year 1854 ; and from that 
day to this has been in the possession, and, excepting a liti- 
gation in the State courts of California, instituted by Wm. 
McGarrahan in which he was defeated, has been in the 
quiet, undisturbed and unquestioned possession, of the 
company and its grantors. There has been expended on 
this lode not only the required sum of one thousand dollars, 



but, at the least, an amount of one hundred and fifty thou- 
sand dollars. 

In 1866, the land in which this lode is situated was the 
undoubted and unquestioned property of the United States. 
At that time no Mexican grant, which it was claimed, or pre- 
tended, covered this lode, had been confirmed; nor is it pre- 
tended that any such was pending or existing; On all hands 
it is admitted that on the 26th day of July, 1866, the land 
in which this lode is located was the public property of the 
United States, and within the purview of the Act of that 
date, the principal provisions of which are herein quoted. 

Under the provisions of that Act, the company proceed- 
ed to perfect their^title to this lode ; they filed in the local 
office a diagram of their claim, comprising about four hun- 
dred and eighty acres, a quantity, as they proved to the sat- 
isfaction of the proper officer, within the limits prescribed 
by the mining laws of the district, and within the limits 
prescribed by the Act ; they posted the same, with a notice 
of their intention to apply for a Patent, in a conspicuous 
place upon the claim ; the Kegister of the Land Office pub- 
lished a notice of the same in the proper newspaper, and 
also in his office, for ninety days ; the Surveyor General, 
upon satisfactory proof made to him of these facts, surveyed 
the premises and made a plat thereof, indorsed with his ap- 
proval, designating the number and description of the loca- 
tion, the value of the labor and improvements, and the char- 
acter of the vein exposed ; and the Company paid to the 
proper officer &ve dollars an acre for the said 480 acres, to- 
gether with the cost of such survey, plat and notice ; and 
having given satisfactory evidence that said diagram and 
notice had been posted on the claim for the said period of 
ninety days, and no adverse claimant to any part of said lo- 
cation having appeared before the approval of the survey, 
the Kegister of the Land Office transmitted to the General 
Land Office said plat, survey and description. In short, 
every requirement of the Act of 1866 was complied with in 
the most minute particular, upon a compliance with which 
the statute declares that ''the Patent shall issue." 



For the correctness of these statements we again appeal 
to the records in the archives of the Department of the Sec- 
retary of the Interior. 



We stand precisely where stood the Chollar, the Gould 
and Curry, the Savage, the Hale and Norcross, in Nevada ; 
the Eureka, the Idaho, the Empire and other gold mines in 
California, and the Clear Creek Quicksilver Mine in the im- 
mediate neighborhood of the New Idria, to which patents 
have been issued. Why were patents issued in all these 
cases, whilst in ours proceedings have been so long sus- 
pended ? The only ground upon which this tedious and on- 
erous delay is pretended to be justified, is found in the 
following facts. The same McGarrahan who, as we have 
before said, harrassed us with a fruitless litigation in the 
Courts of California, this defeated claimant, defeated both 
in the State and Federal courts, caused a bill to be intro- 
duced into the House of Representatives in the winter of 
1867-8, which gave him the right to purchase of the United 
States about seventeen thousand acres of land at the min- 
imum price, viz. : at a dollar and a quarter an acre. In 
support of this bill, McGarrahan represented to the com- 
mittee to whom it was referred that he was a bona fide pur- 
chaser, from one Vicente Gomez, (a Mexican claimant, 
whose claim had been finally rejected by the Supreme Court 
of the United States,) of the land he proposed to purchase. 
In this very application, McGarrahan admitted that the land 
was the property of the United States ; and, as we have 
seen, so far as it was mineral land, Congress had made an- 
other and different disposition of it in July, 1866. But, in 
fact, the land that McGarrahan sought to purchase is located 
from twelve to eighteen miles south and east of the land 
claimed by Gomez. During the pendency of Gomez' claim 
before the courts of the United States, McGarrahan pro- 
cured an ex parte survey of the claim, and had it located so 
as to include the property of the New Idria Company. It 
is the land contained in this spurious survey that he seeks 
the right to purchase, 



In entire ignorance of the facts here detailed, the House 
of Eepresentatives passed this bill. When it came to the 
Senate, it was referred to the Committee upon Private 
Land Claims, by whom the case was fully and thoroughly 
investigated ; and upon the unanimous report of that com- 
mittee, the bill was, by the Senate, indefinitely postponed. 
This occurred at the last session. It is this same rejected 
bill that McGarrahan has again caused to be introduced into 
the Lower House, where it is now pending. 

The committee of the House, to whom the former bill was 
referred, in 1868, passed a resolution requesting the Secre- 
tary of the Interior to suspend all action on the application 
of the New Idria Company for a Patent, until the fate of 
McGarrahan's bill should be determined, and the question 
is, does the passage of that resolution, or the pendency of 
that bill, form any just or legal ground for the withholding 
of the Patent ? 

Upon this point it appears that the Secretary of the 
Interior consulted the Attorney General, and from this 
officer he received an official communication, under date 
of June 22d, 1869, from which we make the following extract: 

" If, as I understand, the New Idria Mining Company are 
prepared to establish, to the satisfaction of your Depart- 
ment, their claim under the statute of 1866, ch. 262, (4 
Stat., 251,) to receive a patent for certain lands in Cali- 
fornia, they have a legal right to have the question of their 
claim to such patent passed upon, such that your Depart- 
ment is bound to consider and determine the same, not- 
withstanding the request from the Judiciary Committee of 
the House of Eepresentatives for a suspension of action. 
Their claim, as I understand it, is of a title to land created 
by law. If, under the law, they have this title, and are 
prepared to furnish the proofs of it, the law gives them the 
right to a patent, and the issuing a patent is not made dis- 
cretionary with the Executive officers of the Government. 

''The question, then, resolves itself into this: Whether, 



when a right is created by law, and a duty devolved upon 
the Executive Department under the same law, the enjoy- 
ment or enforcement of such rights can be suspended at the 
request of a committee of the House of Representatives ? 
I am unable to see that this result could be obtained by any 
action, even of the whole House of Representatives, or of both 
branches of Congress, unless by a change in the law itself. 
To deprive any person of a right which the law creates, at 
the request of anybody, would be a novel idea under a sys- 
tem of government which is supposed to be a government of 
laws, and not of men." 

From all this it will appear that the Act of 1866 directed, 
upon certain terms and conditions, a sale to the Company 
of a tract of land including three thousand feet upon this 
lode, "so extending laterally or otherwise as to conform to 
the local laws, customs and rules of miners." It will ap- 
pear by the report of the proper officers of the Government, 
that all these conditions have been fully and faithfully per- 
formed; that the required price has been paid into the 
Treasury of the United States; that the quantity of land 
contained in the survey does not exceed the limits pre- 
scribed by the Act; and that, in the opinion of the Law 
Officer of the Government, there is no ground for further 
delay in the issuance of the patent. 

Your petitioners are advised that by virtue of the pro- 
ceedings aforesaid, had by them under the Act of 1866, 
they acquired a vested right to the said 480 acres, for which 
they have paid their money into the Treasury of the United 
States, and of which no future Act of Congress can, by any 
possibility, divest them; and that should McGarrahan, by 
any means, obtain a patent for any tract including the said 
480 acres, that as to such portion, a Court of Equity, look- 
ing at this matter as did Attorney General Hoar, would 
treat McGarrahan as a trustee holding the legal title to the 
use of your petitioners, and would, upon application, com- 
pel him to convey the same to them. From the ruinous de- 
lay and expense of such litigation we entreat your Excel- 



8 

lency to save us, and we rest in entire confidence that this 
matter being presented in its true light to your Excellency, 
you will no longer withhold from us the evidence of title to 
property which we have honestly and fairly acquired under 
the laws of the United States. 

By order of the Board. 

WILLIAM E. BAKKON, 

President. 



DECISION 

OK THE 

Commissioner of the General Land Office that the 
New Idria Mining Company have fully complied with 
the law of Congress of July 26, 1866, (extending the 
benefit of the pre-emption law over mineral lands,) 
and are entitled to a patent for the land embraced in 
their proofs, and which McGarrahan asks Congress to 
permit him to enter. 



Department oe the Interior, 

General Land Office. December 5, 1870. 
W. H. Lowry, Esq.. 

Washington, Jj. C : 

Sir — Pursuant to the direction dated the 3d instant, of 
the honorable Secretary of the Interior, the following copy 
is furnished you, and is hereby certified to be a correct 
transcript from the record ; it being proper to add that 
the case has not yet been finally passed upon by the supe- 
rior executive authority, but stands suspended, it is un- 
stood, in the department. 

Very respectfully, your obedient servant, 

[l. s ] JOS S WILSON, 

Commissioner . 



Department of the Interior. 

General Land Office. September 17, 18T0. 
Hon. J. D. Cox, 

Secretary of the Interior : 

Sir — In accordance with the instructions of the honor- 
able Secretary, this office has, in the ordinary course~of 
business, and after due notice, taken up and considered 
an application made by the New Idria Mining Company 



for a patent under the act of Congress approved July 26, 
1866, (14 Stat., 251-2,) for 480 acres of mineral land sit- 
uate in townships 17 and 18 south, of range 12 east, 
Mount Diablo meridian, California. 

It appears that this New Idria interest falls within the 
alleged limits of the Gomez-Panoche-Grande claim, as 
shown by the diagram herewith. 

in the Secretary's decision of the 13th August, 1870, 
the Gomez claim is held to be invalid in virtue of the judg- 
ment of the Supreme Court of the United States, (3 Wal- 
lace and 9 Wallace, pages 752 and 298,) and other pro- 
ceedings specially referred to in said ruling. Dealing, 
therefore, with this New Idria claim as unaffected by the 
rejected Gomez title, the papers in said New Idria case 
have been examined in view of the before-mentioned act 
of Congress approved July 26, 1866, iC granting the right 
of way to ditch and canal owners over the public lands, 
and for other purposes," the result of which examination 
is presented in the following, to wit : 

1. The applicant aforesaid, viz, the {t New Idria Min- 
ing Company," is a corporation organized January 25, 
1858, by virtue of the laws of the State of California. 

2. The said company holds by purchase, agreeably to 
the local customs or rules of miners, the possessory right 
to 480 acres of mineral land in what is called the San 
Carlos mining district in Fresno county, California, said 
area embracing what were three original locations or 
claims, to wit: the '" Molino," ' c San Carlos," (or " El 
Kesplandor,") and the u New Idria," located and recorded 
in the year 1854, as shown by certified copies of the records 
herewith ; the yield of the mine being cinnabar or quick- 
silver, and the amount expended in labor and improve- 
ments thereon being over $200,000. 

3. It is further shown that said company on the 1st of 
February, 1867, filed with the United States register, at 
San Francisco, a " diagram " of the claim, with " notice " 



of intention to apply for a patent; that the register pub- 
lished the notice in a newspaper nearest the location of 
the claim for ninety days, posted such notice in his office 
for that time, and for a like period the notice and diagram 
were posted on the claimed premises ; that thereafter 
and in the month of June, 1867, the premises were sur- 
veyed under direction of the United Slates surveyor gen- 
eral, it not being shown to the department that any adverse 
claim was presented in the local courts of California in 
view of the 6th section of said act of July 26, 1866 ; that 
the plat of said survey received the approval of the said 
surveyor general on the 22d of June, 1868 ; that the 
expenses of survey, platting, with cost of publication of 
notice, were settled and an actual entry of the land made 
at the office of the register and receiver, and the amount 
of purchase money ($2,400) paid ; such proceedings in 
cases of mining claims being in accordance with the 
requirements of the statute. 

4. There was, however, this irregularity in the New 
Idria proceedings. On the 1st April, 1867, the clerk of 
the Judiciary Committee of the House of Kepresentatives 
sent to this office a resolution directing the Secretary of 

*the Interior to withhold the issuing of a patent and to 
permit no proceedings in his department affecting the 
title to the Kancho Panoche Grande until the claim, then 
pending in Congress, shall have been disposed of. 

5. Instructions to this effect were accordingly despatched 
to the surveyor general and. register and receiver at San 
Francisco, California, on the 18th of April, 1867, and 
repeated to the register and receiver May 23, 1867, Feb- 
ruary 1, 1868, and August 17, 1868; yet, notwithstand- 
ing said suspensive orders, the surveyor general on the 
22d of June, 1868, approved the survey, and the register 
and receiver with their letter of 29th July, 1868, for- 
warded the papers as a basis of patent. 

6. In the abstract of the proceedings in the case, as 



communicated by this office to the department, under date 
3d January, 1870, it is stated that " if this claim had not 
been presented during the pendency of an order suspending 
action on the case of Eancho Panoche Grande, claimed to 
embrace the New Idria mine by its proprietor, the papers 
would be otherwise regular in form and might constitute 
a proper basis for a patent.'*' And as the proceedings of 
the surveyor general and local officers, after the order of 
suspension, were merely in the way of authenticating and 
transmitting matter previously commenced and nearly 
completed before the receipt of such order, and as such 
proceedings are in all other respects in conformity ^o statu- 
tory requirements, it would seem a useless formality, 
attended with unnecessar}^ expense and delay, to return 
the papers from the files of this office to the surveyor gen- 
eral and register and receiver at San Francisco merely for 
reapproval and retransmission, and it is accordingly ruled 
by this office that the proceedings of said New Idria Min- 
ing Company, under the act of July 26, 1866, being in 
compliance with said statute and free from any valid 
adverse title, the said New Idria Mining Company has 
met the requirements of the statute giving authority for 
the issuing of a patent. 

Should it be held, however, that the aforesaid prema- 
ture proceedings of the local officers render it necessary to 
have republication of notice, &c, and reapproval of sur- 
vey, it is submitted as the opinion of this office that the 
claim for a patent may be approved by the board in virtue 
of the confirmatory powers conferred by the acts of Con- 
gress, approved August 3, 1846, (Stat. 9, p. 51,) March 
3, 1853, (Stat. 10, p. 258,) and June 26, 1856, (Stat. 11, 
p. 22,) this mining interest assimilating to a pre-emption, 
and the question being one now between the United States 
and the New Idria Mining Company, under the ruling of 
the head of the department as to the Gomez claim. The 
foregoing decision is, of course, subject to the restraining 



or reviewing power of the President, in view of the order 
communicated with the Hon. Secretary's letter of 23d ult., 
with regard to signing a patent for said claim. 

The papers in the case are sent herewith, together with 
a list of the same. All of which is respectfully submit- 
ted, remaining, with great respect, 

Your obedient servant, 

JOS. S. WILSON, 

Commissioner. 

Examined, and found to be a correct copy. 

0. H. McKEE, 
E. C. FORD, 

Clerks G. L. 0. 



LIBRARY OF CONGRESS 



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